Case: 13-15073

Date Filed: 06/05/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15073
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-01276-TCB
FRANK JOSEPH SCHWINDLER,
Plaintiff - Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 5, 2015)
Before HULL, ROSENBAUM, and COX, Circuit Judges.
PER CURIAM:
Plaintiff Frank Joseph Schwindler is an inmate in the Georgia state-run
prison system. He seeks prospective injunctive relief against the Commissioner of
the Georgia Department of Corrections in his official capacity based on the Ex

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parte Young doctrine. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908).
The district court granted summary judgment for the Commissioner on all claims.
Schwindler appeals only the district courts grant of summary judgment on his
access-to-the-courts claim. See Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491,
1498 (1977). We reverse.
Schwindlers access-to-the-courts claim is based on his allegation that the
various prisons in which he has been incarcerated have continuously denied him
access to his legal files, thereby frustrating his ability to seek post-conviction
relief. He also alleges that the Georgia Department of Corrections tortiously
deprived plaintiff of between 40 and 60 percent of plaintiffs legal files and
materials without due process. (Complaint, D.E. 1 at 5). In other words, a number
of his legal files have gone missing.
The district court granted summary judgment on this claim based on its
determination that Schwindler had not created a genuine issue of material fact as to
whether the constitutional violation was ongoing. See Summit Med. Assocs. v.
Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999) ([T]he Ex parte Young doctrine
applies only to ongoing and continuous violations of federal law.) (citation
omitted). The district court based its holding on two separate bases. First, the
district court concluded that the loss or destruction of Schwindlers legal files
happened at a discrete moment in the past, and is, therefore, not an ongoing
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violation. Since the files no longer exist, the district court reasoned, there is
nothing for the district court to do about it. Second, the district court concluded
that Schwindler had presented no evidence of ongoing denials of access to his files.
We review de novo a district courts grant of summary judgment, using the
same standards as the district court. McCormick v. City of Fort Lauderdale, 333
F.3d 1234, 124243 (11th Cir. 2003). Summary judgment is appropriate where
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a).
We hold that there is a genuine issue of material fact as to whether there is
an ongoing violation of Schwindlers right to access the courts for two reasons.
First, Schwindler was asked in his deposition if there were instances where [he
was] not allowed access to [his] files. (Dep. of Frank Schwindler, D.E. 101-7 at
28). His response was [t]hats correct. (Id.). The Commissioner refers to this
testimony as vague, unsupported, and conclusory. (Br. for Appellee at 12).
However, this is not a pleading, it is testimony. Schwindler was under oath, and
need not testify with the same level of specificity as in a complaint in order for it to
qualify as evidence.
Second, and most importantly, Schwindler seeks the replacement of his lost
or destroyed files, to the extent possible. The district court ignored the possibility
that the Commissioners continued refusal to attempt to replace the files that were
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lost while in the Georgia Department of Correctionss custody is itself an ongoing

violation of Schwindlers right to access the courts. 1
For the foregoing reasons, we find that Schwindler has created a material
issue of fact as to whether there is an ongoing violation of his right to access the
courts. We reverse the judgment of the district court and remand for further
proceedings.
REVERSED AND REMANDED.

The Commissioner also seeks to defend the judgment of the district court based on
Schwindlers failure to prove actual injury. The Commissioner did not raise this issue below
and, for this reason, the record has not been sufficiently developed for us to consider it.
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